Dodhia Motors v Joshua Mue Mboya & 3 others

b. The Appellant did not enter appearance in the suit because he had sold the accident motor vehicle and there was an agreement that any liabilities arising after the sale would be born by the buyer. c. The 1st Defendant being the 4th Respondent herein, had breached the said agreement and had not taken care of the Appellant’s interests. d. The Appellant has a good defence and should not be condemned unheard. e. No party would suffer undue prejudice if the orders sought were granted as the case had not yet been heard. 3. In the supporting affidavit to that application sworn by Tanil Mohanlal Shah, it was averred that he was the Managing Director of the Appellant and that his company sold motor vehicle registration No. KAS 480C on 3/5/2004 to one James Mitambo Maina and that the accident occurred six years later on 28/5/2010. 4. The Appellant filed a further affidavit sworn on 8/5/2015 averring that the test suit did not determine the issues between the 1st Defendant and the 2nd Defendant on merit as the 2nd Defendant/Appellant did not have an opportunity to present its case and further that the sale agreement of the subject motor vehicle was express that all liabilities after the sale would be the responsibility of the buyer and the claim in the suit before the trial court was one of such liabilities. 5. The 1st Respondent filed Grounds of Opposition to that application asserting that the application by the Appellant was frivolous, incompetent and vexatious, bad in law, incurably defective and that it was an abuse of the court’s process. 6. The 1st Respondent also averred that the application was an afterthought and was brought in bad faith and that there was an ordinate delay in bringing the application. 7. The 1st Defendant being the 4th Respondent herein swore a Replying Affidavit averring that the Appellant was served but failed to enter appearance. He also averred that there was a suit in CMCC. No. 1574 of 2010 which is a test suit vide a consent order that covers many matters including the suit in which the application had been filed. That in the test suit, the 1st Respondent failed to prove any liability on the part of the 4th Respondent in the judgment delivered on 9/1/2013. 8. Upon considering the Parties pleadings and the submissions to that application dated 16/3/2013, the Learned Trial Magistrate proceeded to dismiss the application and declined to grant the orders sought for the reasons given in the ruling delivered on 28/10/2015 in which the court observed as follows: “ This court has consequently weighed all the issues raised herein. This court has perused CC No. 1574/10 too and the court has established the following: 1. That in CC No. 1574/10, there is a consent order to determine the issue of liability recorded on 1.10.12. The case No. 1574/10 is chosen as a test suit for the following matters,1571,1572,1573,1575,1576,1570,1569,1568,1566,1565 and 1519 all of 2010. 2. That judgment in CC No. 1574/10 has been delivered. I find that whereas the applicant has averred that, this court has discretion to set aside the interlocutory judgment, there are vitiating circumstances that work against the applicant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17269/eng@2024-11-07 2

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Firstly, I find that the consent order of 1.10.12 in CC No. 1574/10 does mention this suit and CC Nos. 1576/10 and 1570/10 as some of the suits where the consent is applicable It therefore follows that the trial of this suit on the issue of liability is pegged to that consent and by extension, the subsequent judgment in CC No. 1574/10. That consent has never been set aside and this court being a court of record is bound by that consent. If the court was to proceed to grant the orders sought for, this court would in essence be shredding in bits some parts of that consent. Secondly, I find that there has been an in ordinate delay in bringing the application. The Applicant has invoked equity for court to do what is just, but again, delay does defeat equity. The interlocutory judgment was entered on 10.12.11 and the consent order in CC.No.1574/10 was entered on 1.10.12. The question is, when did the applicant realize that he needed to make this application. Even going by the similar application made in CC No. 1574/10 dated 27.10.14, I find that a duration of two years had lapsed from the time of the consent order to when the application of 27.10.14 was made. The in ordinate delay is not excusable and I find no plausible explanation to this delay. Thirdly, I find that there exist no mitigating steps taken by the Applicant regarding the order on the interlocutory judgment and the consent order. The Applicant has averred that they were not part of the consent order of 1.10.12. However, the question is, when-applicant discovered that they stood to be adversely offended by the consent and subsequent orders in CC No.1574/10, what steps did they take. Save the application of 27.10.14 in file No. 1574/10, there has been no steps to have the consent order reviewed or appealed. Fourthly, I find that there is an element of bad faith as stated by the Plaintiff. It is alleged by the Plaintiff that the Applicant did settle Machakos CC No. 1574 of 2010, the one which was selected as a test suit. Apparently, this was done on 7/8/2013(as per Hon. Kahuya’s ruling in that case). A party who is seeking the doctrine of equity must do so with clean hands. Why did the Applicant settle the matter in the test suit only to turn around and seek orders of defending the suit in this case. I can only term this as bad faith. All in all, I find that this is a litigant who is seeking court’s assistance when it is too late. I decline to grant the orders sought for. The application of 16.3.2015 is dismissed with costs to the Plaintiff and the 1st Defendant.” 9. Being aggrieved by the above trial court’s ruling delivered on 28/10/2015, the Appellant lodged the appeal herein vide a Memorandum of appeal dated 25/11/2015 raising the following grounds: 1. The Learned Trial Magistrate erred in law and in fact when she considered only one aspect of the application to the exclusion of all the other aspects raised. 2. The Learned Trial Magistrate erred in law and in fact when she made a finding relying on another file that was not before her. 3. The Learned Trial Magistrate erred in law and in fact when she refused take into account-the criteria applicable in applications like the one before her. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17269/eng@2024-11-07 3

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10. 4. The Learned Trial Magistrate erred in law and fact when she failed to exercise discretion in favour of the appellant when there were sufficient grounds to do so. 5. The Learned Trial Magistrate erred in law and fact when she took into account extraneous matters. 6. The Learned Magistrate in law and fact when she failed to apply her mind to the extent of prejudice appellant was exposed to. The Appellant prays that:a. That the ruling delivered on 28th October, 2015 be set aside in its entirety and that the honourable court do make its own findings b. That the cost of this Appeal and the court below be borne by the Respondents. Issues for determination: 11. Having considered the trial court record, the grounds of appeal and submissions for and against this appeal and the cited cases, this court is of the view that the only issue for determination is whether the Learned Trial Magistrate erred in disallowing the Appellant's application dated 16/3/2015 and that this appeal should be allowed. Analysis and Determination 12. What is clear from the appeal herein, is that, it is in regard to invoking the trial court’s exercise of its discretionary powers. 13. As noted earlier, the ruling delivered on 28/10/2015 by the Learned Magistrate was in respect of the application dated 16/3/2015. 14. The application sought the setting aside of the exparte judgement entered in default of appearance together with the consequential orders thereto. The Application was filed pursuant to the provisions of Order 10 rule 11 of the Civil Procedure Rules by DODHIA MOTORS who claim to have sold motor vehicle registration No. KAS 480C on 3/5/2004 to one James Mitambo Maina and that the accident occurred six years later on 28/5/2010. 15. Therefore, even at the time the suit was filed, they were not the owners of the said motor vehicle. 16. Order 10 Rule 11 of the Civil Procedure Rules, 2010 empowers the Court to set aside or vary a default judgement entered under Order 10 (in default of Appearance or Defence) and any consequential decree or Order upon such terms as are just. It provides that:“ Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.” 17. This being a first appeal, this court reminds itself of its primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the evidence and then determine whether the conclusions reached by the trial court are to stand and give reasons either way. That was the pronouncement of the court in the case of Abok James Odera t/a A.J Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates (2013) eKLR. The court held that a first appellate court has a duty to re-evaluate, reassess and re-analyze the record and make its own conclusions. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17269/eng@2024-11-07 4

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18. The circumstances in which an appellate court can upset the exercise of discretion of a trial court were laid down by the Court of Appeal in Mbogo and Another v Shah [1968] EA and further in the case of Wachira Karani v Bildad Wachira (2016) eKLR, wherein the court had the following to say: “ Mulla, the Code of Civil Procedure (2) has illuminated the grounds for setting aside an ex parte decree and what constitutes sufficient cause for setting aside an ex parte judgment/ decree. Essentially, setting aside an ex parte judgment is a matter of the discretion of the court. In the case of Esther Wamaitha Njihia & Two Others v Safaricom Ltd (3) the court citing relevant cases on the issue held inter alia: "the discretion is free and the main concern of the courts is to do justice to the parties before it (see Patel v E.A. Cargo Handling Service Ltd (4) the discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but is not designed to assist a person who deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice (see Shah v Mbogo.] The nature of the action should be considered, the defence if any should also be considered; It also goes without saying that the reason for failure to attend should be considered." 19. In Francis Wambugu v Babu Owino & Others, SC Petition No. 15 of 2018, on the issue of an appellate court entertaining an appeal founded on exercise of discretion of the trial court, it was stated: “ (76) 20. In determining therefore an issue based on the exercise of a discretion, as has been observed, a Court can only be faulted if the use of the discretionary power was based on a whim, and that it can be established that the Court did not consider the prevailing circumstances and take into account what needed to be considered, or considered what ought not to have been considered. To infringe upon this discretionary power, would be tantamount to a judicial review of the decision of another Court’s decision. This is an exercise which this Court, and indeed every other Court, should refrain from engaging in as it would be considered, or indeed viewed as, an interference in another Court’s judicial independence and exercise of discretion.” The well-established principles of setting aside interlocutory judgments were laid out in the case of Patel v East Africa Cargo Handling Services Ltd (1974) EA 75 as per Duffus P. who stated as follows: “ The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given to it by the rules. I agree that where it is a regular judgement as is the case here the court will not usually set aside the judgement unless it is satisfied that there is a defence on the merits. In this respect defence on merits, does not mean in my view, a defence that must succeed, it means as Sheridan J, put it “a triable issue” that is an issue which raises a prima facie defence and which should go to trial for adjudication.” 21. It is now well settled from numerous precedents that a distinction exists between a default judgment that is regularly entered and one which is irregularly entered. The difference between the two was elaborated in detail by the Court of Appeal in CA No. 6 of 2015 James Kanyita Nderitu vs. Marios Philotas Ghika & Another [2016] eKLR, where it was held that:“ ….In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17269/eng@2024-11-07 5

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to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 Rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his Memorandum of appearance or defence, as the case may be, the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer, whether in the whole it is in the interest of justice to set aside the default judgement, among others.” 22. The considerations are however different in case of an irregular judgement. The Court stated as follows:“ In an irregular judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justiciae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular, it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issues or whether there has been inordinate delay in applying to set aside the irregular judgment.The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system. (See Onyango Oloo vAttorney General [1986 – 1989] EA 456).” 23 At this juncture, I pose to ask myself whether the judgement entered in the matters before the Trial Court were regular or irregular. 24. The original file in the Trial Court case is before me. From the record of the proceedings, the Appellant/ 2nd Defendant through Tejul Shah acknowledged in the supporting affidavit sworn on 16th March 2015 at paragraph 6 that upon service of Summons to enter appearance in the matter, he confirmed with the police records that the 1st Defendant Cosmas Mbalya Kilonzo was the beneficial owner in actual use and control of the subject vehicle which he was using to carry on Matatu business presumably having bought the same from the person whom the Appellant had sold it to. 25. There is no dispute on the issue of service of Summons to enter appearance upon the Appellant/ 2nd Defendant and therefore the interlocutory judgment entered was regular. 26. In considering the case of James Kanyita Nderitu (supra) on a regular default judgment; the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 Rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his Memorandum of appearance or defence, as the case may be, the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer, whether in the whole it is in the interest of justice to set aside the default judgement, among others. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17269/eng@2024-11-07 6

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27. I will now turn to consider thereasons advanced by the Appellant for failure to file its Memorandum of appearance or defence and the length of time that elapsed since the default judgment was entered. According to the Appellant’s Managing Director, the Appellant was served with Summons to enter appearance but upon visiting the Machakos Police Station to get the details of the claim, they realized that it was about a motor vehicle they had sold and that as per the police records, the same was duly insured and that they believed the Insurance would take care of the claims but this never happened and the Appellant was to be woken up later in the year 2015 by the attachment of their property in execution in one of the cases being Machakos CMCC No. 1574 of 2010 and for fear of seizure of their property they settled the claim and then instructed counsel to follow up on the other claims. Upon perusal of the court files, it emerged that there was interlocutory judgment against the Appellant in all the files. This prompted the Appellant to instruct counsel to act for it and this led to the filing of applications to set aside judgments in Machakos CMCC Nos.1574, 5171,1572,1573,1575,1576,1570,1569,1568,1566,1565 and 1519 all of 2010. Case No.1574/10 was chosen as a test suit for all the matters and a consent on liability was recorded in the said test suit. The question is, when did the applicant realize that he needed to make this application. The default judgment was entered on 9th January 2013 whereas the applications to set aside default judgments were all filed on 23rd March 2015 which was a delay of two (2) years down the line and this amounted to inordinate delay. 28. It is this court’s view that the Appellant opted to ignore the Summons to enter appearance in the matter and assumed the Insurer of the subject vehicle would deal with the matter. The Appellant does not state whether it ever consulted the person who had allegedly bought the subject vehicle from them or the alleged Insurer at the time. The best the Appellant would have done was to enter appearance and file a defence denying liability and raising the issue of having sold the subject vehicle as at the time of the accident and thereafter contacted the person who had allegedly bought the subject vehicle or the alleged Insurer. The reason of delay advanced by the Appellant in failing to enter appearance and file defence is not convincing to this court. 29. On whether the Appellant’s intended defence raises triable issues; I have perused through the Trial Courts proceedings. I have established that the 1st Defendant/4th Respondent herein and the Plaintiffs/1st to 3rd Respondents selected a test suit being Machakos CMCC No. 1574 of 2010 in which liability was recorded by consent. This Consent remains unchallenged to date as the same was never sought to be set aside or reviewed and in the circumstances the intended Defences would not raise any triable issues especially on liability. 30. Further, the court is supposed to consider the respective prejudice each party is likely to suffer and whether on the whole it is in the interest of justice to set aside the interlocutory judgements. As noted earlier, this appeal arises from matters concluded long time ago with judgements delivered sometimes in the year 2013. There are therefore judgments on record which remain unchallenged. Litigation should be brought to an end by enforcing the judgments. I am satisfied that granting the present application would occasion more prejudice to the 1st, 2nd and 3rd Respondents decree holders as compared to the Appellant who may pursue the person it allegedly sold the subject motor vehicle to. 31. Certainly, it would not be in the interest of justice in the circumstances of this case to allow the orders for setting aside the respective judgments. 32. The Appellant in its submissions opted to argue all the 6 grounds together and asked this court to set aside the Trial Magistrate’s ruling and proceed to set aside interlocutory judgments in the three cases and grant the Appellant leave to defend the suits. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17269/eng@2024-11-07 7

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33. I agree with the submissions of the 1st, 2nd & 3rd Respondent manner in which the grounds of appeal have been drawn are fatally defective. Ground 1 of the Memorandum of Appeal fails to specify the particular application that the Trial Magistrate considered to the exclusion of others; Ground 2 of Memorandum of appeal does not specify the exact case number that is alleged to have been relied upon by the Trial Magistrate; Ground 3 does not specify what exactly the Trial Magistrate failed to take into account or the criteria that was not used; lastly Grounds 4, 5 and 6 do not bring out the extraneous matters that the Trial Magistrate never considered. 34. The Appellant did not attempt to expound on the grounds of appeal in its submissions. 35. Guided by the authorities I have cited above and the analysis of the matters before the trial court, I find no fault on the part of the Trial Magistrate in declining to set aside the default judgements and the consequential orders thereto. I would have arrived at the same decision. 36. I therefore dismiss the Appeal in its entirety with costs. It is so ordered. DATED, SIGNED & DELIVERED AT MACHAKOS ON 7TH NOVEMBER 2024 NOEL I. ADAGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17269/eng@2024-11-07 8

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